Urging the County Delegation to Strengthen the State Public Ethics Law

In the January 13 edition of the Frederick News Post, it was reported that members of the Frederick County Delegation resisted changes to improve the Maryland State Public Ethics Law. County Executive Jan Gardner has proposed a modest change to an extremely important law. It’s a positive change, one that is long over-due, and very much needed during this legislative session.

Before I explain why I support this proposal, let me describe a not-so-hypothetical scenario:

You’re attending a public hearing before the Planning Commission. At issue is a major development and a positive outcome will be worth literally tens of millions of dollars to the developer. At the start of the hearing, the developer walks up to the dais and hands an envelope to one of the commissioners. That commissioner is running for County Council, and the envelope contains a $4,000.00 contribution to the candidate. With a smile and wink, the developer wishes the commissioner luck in the campaign and returns to his seat.

You might think this is far-fetched but how far-fetched is it really?

This happens today and it’s perfectly legal. Sure, the donations aren’t as blatant – but they are just as real. A check in the mail just prior to the hearing is no different than one presented at the dais. Any ethical conflict is clearly the same.

During the 2014 campaign season, the Planning Commission Chair was running for a seat on the new county council. Sixty percent of his campaign funding came directly from developers and a few people with direct ties to development projects.

For example, he took $500 from the developer of the Monrovia Town Center (MTC). In fact, he accepted this donation during the pendency (the time between the filing of the application and a final decision) of not one but three MTC development applications coming before the Planning Commission.

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Under the current terms of the State Public Ethics Law, had these donations been made to a sitting elected official then (i.e., a county commissioner, or either a council member or the county executive now) during the pendency of one of the proscribed development applications, it would have been illegal. The law doesn’t currently cover the Planning Commission, however. The donation was legal. Unethical, but legal. That’s what this proposal aims to address.

Some would argue that the Planning Commission is only an advisory body and shouldn’t be included. I strongly disagree.

The Planning Commission is far more than an advisory body. First, they are authoritative decision makers on many development issues. Second, their advice to the council carries great weight due to the expertise and knowledge that they bring to their decision making. Frankly, for those that would minimize the importance of the commission and, therefore, their relevance to this section of the Public Ethics Law, I ask why do you suppose the commission even exists? The answer is simple. It is because the Planning Commission is relevant, their decisions are critical and weighty, and their influence can’t be easily understated. They carry a special and prominent place in Maryland law and deservedly so.

Others would argue that we focus too many of these laws on developers. Somehow, they have been singled out unfairly. To this I argue that land development issues are among the most significant financial decisions that our elected and appointed officials make (including planning commissioners).

Moreover, these decisions influence and control the prospect of enormous and direct financial gain to the developer. A vote on an annual budget decision impacts the entire polity. A vote on a development project may promise millions in profits for a single person or business. That’s why we can focus our efforts on development issues. The stakes are the highest, the money flowing into campaigns from these sources dwarf all others, and the chance of ethical conflict is severe.

Lastly, some would wish to argue this in first amendment terms. A campaign donation is protected speech, or so goes the argument. To that I say simply: Yes, but…!

Our society has always placed some limits on free speech. We can’t yell “fire!” in a crowded theater, or make bomb jokes at the airport. In Maryland, and in many other states, we also can’t make campaign donations to someone sitting over a pending development application. The ethical conflict posed by this situation is too severe and very real.

If you still don’t accept these arguments, think back to my scenario. Do you think it ethical to accept that donation from the developer right there in the hearing room? To the members of the Delegation, I ask: Would you accept it yourself?!

Please let me know if your answer is yes, because I will never vote for someone who compromises their ethics that readily.

If you believe that accepting such a donation is unethical, however, then I urge the members of our delegation to support this bill.

We shouldn’t put it off under the guise of trying to accomplish a more comprehensive review later.

Support this bill now. The current law was a good start, but it can be improved. Now is the time to close the loophole that allows these donations to members the Planning Commission. This issue shouldn’t and doesn’t have to wait. We’ve already seen so much abuse in the 2014 election and Frederick County deserves a 2018 election free from ethical corruption.

ADDENDUM

As of this writing, the status of the County’s proposed bill is still in the air. What I do know is that the Delegation is scheduled to discuss a series of three amendments to the bill that have been proposed by Senator Michael Hough.

1) Amendment 1 (48 hr Notification of all Donations Greater than $500). I’m not sure that a 48 hr time window is practicable but it should be examined. The key point here, however, is that this is purely about campaign finance reporting, whereas the State Public Ethics Law for Frederick County only addresses two specific issues – campaign donations and ex parte communications related to pending development applications. I have no issue with thinking more broadly about the ethics law, but I strongly believe that it should be done in a considered fashion with a strong, transparent public review process – something not available in the few short days before the Delegation considers this amendment. This provision would warrant a complete overhaul of the current law, with no attention to any of the relevant details. Also, I don’t accept Sen. Hough’s argument that the State legislators be treated differently than County officials in this regard. Sen. Hough is a State Senator all year long and behaves the same. Any donation notification that they propose for County officials should be equally applicable to State legislators.

2) Amendment 2 (Appointed Board Members Must Step Down if they Seek Elected Office). The premise here is that a campaign donation creates a conflict of interest for an appointed board member. To that I say – “Yes, of course it does!” However, why are they any different from an elected official accepting a donation? The answer is, they’re not. I don’t see any logic or rationale behind demanding that appointed members must step down from a board/commission if they seek elected office. If you take a campaign donation from someone with an issue before you, it makes no difference whether you are elected or appointed.

3) Amendment 3 (Zero Donations to the County Executive from Business with Pending Bids or Applications). There’s probably a knee-jerk reaction out there that say “why not?” Personally, when I think of the restrictions that I propose – and I have proposed extensive modifications to the current ethics law – I want them to be fair and I want an honest official to be able to abide by them. I think this proposal sets an unreasonably high bar for the CE to attain and presumes a level of omniscience – i.e., that the CE actually knows everyone (and their lawyers/lobbyists) with a bid, contract or application underway. I don’t think that’s fair or practical. I also don’t think every minor, low-level acquisition needs to be covered by the ethics law. That doesn’t pass the reasonable test for me. Lastly, and most importantly in the context of this bill, It’s also well outside the scope of the current State Ethics law which is again, limited to development issues. Btw – that same law already covers the CE (and the Council) for development applications.

If Sen Hough wants all donations banned for any business before the County, then I’ll say again – it should be applicable to the state legislators, too! Sen Hough took money from parties that he then acted favorably toward in legislation. Based on Hough’s argument regarding this provision for the CE, it doesn’t really matter whether he took this money during the Legislative session or not. The money is just as real and the end result the same.

I am more than happy to participate in any process that leads toward stronger ethics laws for Frederick County. However, I do strongly believe that it should be done thoughtfully and with care. I strongly believe that it should apply equally to County and State Legislative officials. Most importantly, I do not think that undertaking that review should prevent the current Delegation from acting upon the County’s current proposed revisions to the Ethics Law. The proposal to include the Planning Commission is a positive improvement and should not be put aside. We can still look to improve the law in the future but let’s not over-look a chance to make it better now.